Citation Nr: 0824359
Decision Date: 07/21/08 Archive Date: 07/30/08
DOCKET NO. 04-00 162A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a bilateral leg
disorder.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for a bilateral hip
disorder.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for a back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Appellant and her spouse
ATTORNEY FOR THE BOARD
David Ganz, Associate Counsel
INTRODUCTION
The veteran had active service from January 1997 to September
1998.
This matter originally came to the Board of Veterans' Appeals
(BVA or Board) from a December 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida that denied the benefits sought on
appeal. In July 2007, the Board returned this case for
additional development, and the case was subsequently
returned for further appellate review.
FINDINGS OF FACT
1. An unappealed rating decision dated in July 1999 denied
service connection for bilateral leg, bilateral hip, and back
disorders.
2. The evidence received since the July 1999 rating decision
is duplicative, cumulative, and redundant of evidence
previously considered, and does not relate to an
unestablished facts necessary to substantiate the claim of
entitlement to service connection for bilateral leg,
bilateral hip, and back disorders and does not raise a
reasonable possibility of substantiating the claims.
CONCLUSIONS OF LAW
1. The July 1999 rating decision denying service connection
for bilateral leg, bilateral hip, and back disorders is
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104,
20.1103 (2007).
2. New and material evidence has not been received since the
July 1999 rating decision, and the claim for entitlement to
service connection for bilateral leg, bilateral hip, and back
disorders is not reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before addressing the merits of the veteran's claims on
appeal, the Board is required to ensure that the VA's "duty
to notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2007). The notification obligation in
this case was accomplished by way of letters from the RO to
the veteran dated in September 2002, July 2004, March 2006,
June 2006, August 2007, and March 2008. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16
Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473
(2006); Kent v. Nicholson, 20 Vet. App. 1 (2006).
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case.
The VA has obtained service medical records, assisted the
veteran in obtaining evidence, afforded the veteran medical
examinations and opinions as to the existence and etiology of
the claimed disabilities, and afforded the veteran the
opportunity to give testimony before the Board. All known
and available records relevant to the issues on appeal have
been obtained and associated with the veteran's claims file;
and the veteran has not contended otherwise. Therefore, the
Board finds that the duty to notify and duty to assist have
been satisfied and will proceed to the merits of the
veteran's appeal.
The veteran filed a claim to reopen her claims for service
connection for bilateral leg, bilateral hip, and back
disorders in July 2002. In December 2002, the RO denied this
claim finding that the veteran had not submitted new and
material evidence to reopen the claim. The veteran contends
that she has submitted new and material evidence. At her
April 2008 hearing the veteran testified that she was in
perfect condition when entering service and that since
service she has experienced problems that have limited her
mobility in certain areas of her life.
If new and material evidence is presented or secured with
respect to a claim that has been disallowed, VA must reopen
the claim and review its former disposition. 38 U.S.C.A. §
5108. New evidence means existing evidence not previously
submitted to agency decision makers. Material evidence
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must a reasonable
possibility of substantiating the claim. 38 C.F.R. § 3.156
(a).
Generally, to prevail on a claim of service connection on the
merits, there must be medical evidence of (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in- service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247 (1999); see
also 38 C.F.R. § 3.303 (2007).
In determining whether evidence is "new and material," the
creditability of the new evidence must be presumed. Justus
v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v.
Brown, 7 Vet. App. 216 (1994) ("Justus does not require the
Secretary to consider the patently incredible to be
credible").
The RO originally denied entitlement to service connection
for bilateral hip, back, and bilateral leg disorders in a
July 1999 rating decision on the basis that the veteran did
not have evidence of chronic bilateral hip, back, or
bilateral leg disorders subject to service connection. The
veteran was notified of that decision and of her appellate
rights, but she did not appeal that decision and it is now a
final decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160 (d),
20.200, 20.201, 20.302, 20.1103.
Evidence considered at the time of the July 1999 rating
decision includes the veteran's service medical records
(SMRs), a VA examination report dated in April 1999, which
notes that the veteran has bone and joint pain, but no
chronic disability or disease, including fibromyalgia or
myofacial pain syndrome, and statements from the veteran.
The veteran has submitted the following additional evidence
since the July 1999 rating decision:
SMRs dated in July and September 1998, which note that the
veteran was assessed with shin splints and reported chronic
bilateral leg pain, respectively. SMRs dated in August 1998
that note an assessment of myofacial pain syndrome, and SMRs
dated in August 1998, which note impressions of a normal
study of the hips and no abnormalities of the lumbosacral
spine.
VA treatment records dated in August 2001, which note pain in
the right lower leg, and an impression of negative right leg.
An August 2001 VA treatment report, which notes leg pain of
an unknown etiology, probably somatization disorder. Private
medical records dated in April 2002, which note mild
degenerative findings within the thoracic spine. A July 2002
VA treatment report, which notes, following imaging,
impressions of negative ankles, negative right leg, and
negative lumbosacral spine.
An undated letter from the veteran's husband that indicates
that when the veteran entered the military she was healthy
and now she complains of pain with normal, everyday
activities.
A VA examination, which was conducted in April 2006. A
review of the veteran's claims file and imaging was conducted
by the examiner. A diagnosis of mechanical back syndrome,
which is primarily noted as a musculoskeletal or spinal
strain was given, however later in the examination report the
examiner noted that a lumbar strain is not an objective
diagnosis and the low back pain reported by the veteran is
entirely subjective. Concerning her hips, the examiner noted
no evidence of hip joint abnormalities, and that the veteran
does not have any hip disorders. Regarding her legs, the
examiner noted a previous history of anterior shin splints,
but no objective evidence of shin splints at the time of the
examination.
A private medical treatment record dated in October 2006
notes assessments of mechanical sacroiliac joint dysfunction
and low back pain. A private medical opinion dated in
November 2006 notes that the veteran asked for an opinion
regarding the relationship of her complaints to her military
service. The treating clinician opined that the relationship
of her current complaints and physical findings to the
historical account of pain onset while in the military is
indeterminate.
Regarding the duplicate copy of the veteran's SMRs this
evidence is not new, as it is duplicative of evidence
previously considered by the RO at the time of the July 1999
rating decision.
The veteran and her husband's statements of record submitted
since the July 1999 rating decision are not new and material
evidence because they are redundant of evidence considered by
the RO at the time of the July 1999 rating decision, and,
even assuming their credibility, do not present a reasonable
possibility of substantiating the claim. See 38 C.F.R. §
3.156 (a).
The August 2001 VA treatment records note impressions of
negative right leg and pain of an unknown etiology.
Likewise, the July 2002 VA treatment report notes impressions
of negative ankles, negative right leg, and negative
lumbosacral spine, and the April 2006 VA examination notes
that the veteran has no objective diagnosis related to her
back, hips, or legs. Although this evidence is new because
it is not duplicative of evidence considered by the RO at the
time of the July 1999 rating decision, this evidence is not
material as it does not does not present a reasonable
possibility of substantiating the claim because it tends to
disprove that the veteran has a current diagnosis or
disability, which is a fact necessary to substantiate the
veteran's claim as required by 38 C.F.R. § 3.303. See
38 C.F.R. § 3.156 (a). Additionally, this evidence is not
material because it is redundant of the April 1999 VA
examination and other evidence considered by the RO at the
time of the July 1999 rating decision that shows the veteran
has no current disability of her bilateral legs, bilateral
hips, or back.
The private medical records dated in April 2002, which note
mild degenerative findings within the spine, and the October
2006 private medical records, which note assessments of
mechanical sacroiliac joint dysfunction and low back pain,
are new because they are not duplicative of evidence
considered by the RO in July 1999. However, this evidence is
not material because it does not relate to the unestablished
fact of whether the veteran has a current back condition that
is related to service, which is necessary to substantiate a
service connection claim as required by 38 C.F.R. § 3.303.
Therefore, this evidence does not present a reasonable
possibility of substantiating the claim. See 38 C.F.R. §
3.156 (a).
Likewise, the November 2006 medical opinion, which notes that
the clinician's opinion concerning a relationship between the
veteran's current problems and service is indeterminate, is
new because it was not previously considered by the RO.
However, this evidence is not material as it does not does
not present a reasonable possibility of substantiating the
claim because it expresses no opinion about whether the
veteran has a current disability that is related to service
as required by 38 C.F.R. § 3.303. Therefore, this evidence
too does not present a reasonable possibility of
substantiating the claim. See 38 C.F.R. § 3.156 (a).
Given the absence of receipt of any new and material evidence
since the July 1999 rating decision, reopening the claim to
entitlement to service connection for a bilateral leg
disorder, a bilateral hip disorder, and a back disorder is
not warranted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a).
ORDER
New and material evidence not having been submitted, the
claim for service connection for a bilateral leg disorder is
not reopened and remains denied.
New and material evidence not having been submitted, the
claim for service connection for a bilateral hip disorder is
not reopened and remains denied.
New and material evidence not having been submitted, the
claim for service connection for a back disorder is not
reopened and remains denied.
____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs